Abstract

http://ssrn.com/abstract=2139682
 


 



The Truth About Torts: Defensive Medicine and the Unsupported Case for Medical Malpractice 'Reform'


Sidney A. Shapiro


Wake Forest University School of Law

Thomas Owen McGarity


University of Texas at Austin - School of Law

Nicholas W. Vidargas


Center for Progressive Reform

James Goodwin


Center for Progressive Reform

February 1, 2012

Center for Progressive Reform White Paper No. 1203

Abstract:     
In the debate about health care reform, “defensive medicine” has become a convenient culprit for rising costs and especially rising physician malpractice premiums. Vaguely defined, the phrase, “defensive medicine,” is used to suggest that physicians make medical decisions to avoid potential litigation, instead of with their patients’ health and safety in mind. On the strength of this assertion alone, some policymakers argue for restricting Americans’ right to bring suit to recover damages for medical malpractice. This report demonstrates, however, that the proponents of medical malpractice “reform” lack persuasive evidence that tort litigation against physicians encourages them to make medical decisions that they would not have made otherwise.

Powerful business interests have compelling reasons to perpetuate the “defensive medicine” myth. Because the national health care debate has been framed around costs – not patient health and safety or access to care – the “defensive medicine” message has been successfully deployed to restrict Americans’ access to the courts in many states. Meanwhile, “defensive medicine” also serves as a politically expedient straw man, allowing policymakers and the insurance industry to ignore or obscure the real drivers of rising medical costs, including the high costs of prescription drugs; the high demand for, and increasing use of, state-of-the-art technology; the growing incidence of chronic diseases; and an aging population that lives longer and consumes more medical care.

This report first establishes that an intact and robust civil justice system is necessary to the health of society and exposes how rarely doctors are actually being sued. Next, it examines why doctors order tests and procedures. It then surveys available empirical evidence showing that a supposed “defensive medicine” mindset has little impact on medical decisions or on medical practice costs. The report also exposes extraordinary shortcomings in the methodology and academic rigor of the evidence most frequently cited by civil justice opponents.

The evidence reveals that “defensive medicine” is largely a myth, proffered by interests intent on limiting citizen access to the courts for deserving cases, leaving severely injured patients with no other recourse for obtaining the corrective justice they deserve. These changes would limit the deterrent effect of civil litigation and diminish the regulatory backstop that the civil justice system provides to the professional licensing system, leading to more medical errors. Restricting lawsuits might save doctors a negligible amount on malpractice premiums but the vast majority of any savings will most certainly line the pockets of the insurance companies demanding these restrictions. On the other hand, buying into this myth has very real and dangerous consequences. Allowing civil justice opponents to pretend that constraining the civil justice system equates to meaningful health care reform distracts us from doing the things that must be done to fix the system, including avoiding the 98,000 deaths caused by preventable medical errors every year and reducing the unacceptable number of uninsured Americans.

Number of Pages in PDF File: 36

Keywords: Medical Malpractice, Tort Reform, Defensive Medicine, Civil Justice, Litigation

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Date posted: September 1, 2012  

Suggested Citation

Shapiro, Sidney A. and McGarity, Thomas Owen and Vidargas, Nicholas W. and Goodwin, James, The Truth About Torts: Defensive Medicine and the Unsupported Case for Medical Malpractice 'Reform' (February 1, 2012). Center for Progressive Reform White Paper No. 1203. Available at SSRN: http://ssrn.com/abstract=2139682 or http://dx.doi.org/10.2139/ssrn.2139682

Contact Information

Sidney A. Shapiro
Wake Forest University School of Law ( email )
P.O. Box 7206
Winston-Salem, NC 27109
United States
336-758-5430 (Phone)
Thomas Owen McGarity
University of Texas at Austin - School of Law ( email )
727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1384 (Phone)
Nicholas W. Vidargas (Contact Author)
Center for Progressive Reform ( email )
455 Massachusetts Ave., NW, #150-513
Washington, DC 20001
United States
202.747.0698 (Phone)
HOME PAGE: http://www.progressivereform.org
James Goodwin
Center for Progressive Reform ( email )
500 West Baltimore Street
Baltimore, MD 21201
United States
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